The matter of the Estate of Mary Ann (Otherwise Maureen) Horan Deceased and Section 27 (4) of the succession Act, 1965

• Jurisdiction: Ireland
• Judge: Mr. Justice Denis McDonald
• Judgment Date: 24 January 2020
• Neutral Citation: [2020] IEHC 21
• Docket Number: [2019/4790]
• Court: High Court
• Date: 24 January 2020

IN THE MATTER OF THE ESTATE OF MARY ANN (OTHERWISE MAUREEN) HORAN DECEASED

AND IN THE MATTER OF SECTION 27 (4) OF THE SUCCESSION ACT, 1965

[2020] IEHC 21

Denis McDonald J.

[2019/4790]

THE HIGH COURT

PROBATE

Executor – Grant of probate – Succession Act 1965 s. 27 (4) – Appellant seeking to pass over the executor of the estate – Whether there were special circumstances to justify the grant of relief

Facts: The applicant applied to the High Court to pass over Mr Horan, the executor of the estate, and to give liberty to the applicant to apply to extract a grant of probate with will annexed. The application was made pursuant to s. 27 (4) of the Succession Act 1965 in advance of the issue of any grant of probate to Mr Horan as the executor appointed by the deceased, Mrs Horan, under her last will. One of the principal bases on which the application was made was that Mr Horan had failed to take out a grant of probate.

Held by McDonald J that the circumstances were sufficiently special that it was expedient and also necessary that a person other than the executor should be appointed to administer the estate of the late Mrs Horan. It seemed to McDonald J that the behaviour of the executor raised a very serious question as to his suitability and capability to properly and comprehensively administer the estate of the late Mrs Horan in a full and fair way. McDonald J drew attention to the executor’s failure to ensure that annual returns were delivered on behalf of Westwood International Transport Ltd at a time when he was the only director of that company capable of giving instruction; of equal concern was his failure to ensure that rates were paid by Westwood to the local authority in respect of the industrial property known as 40 Fonthill Industrial Park. McDonald J noted that a similar issue arose in relation to his failure to ensure that appropriate details were given to the tenant of the Fonthill premises to enable the rents to be paid. It seemed to McDonald J to be inappropriate that the applicant be given liberty to apply to extract a grant. Given the conflict between the parties as to the interpretation of clause 4 of the will and given the breakdown of trust and confidence between them, it seemed to McDonald J that the only appropriate course to take was to follow the precedent established by Laffoy J in Re The Estate of Rhatigan Deceased [2012] 2 I.R. 286 and to order that the grant should be made to a wholly independent person.

McDonald J held that the case had been made out for the grant of an order under s. 27 (4).

Order granted.

JUDGMENT of Mr. Justice Denis McDonald delivered on 24 January, 2020

The application before the court

1 This is an application to pass over Mr. Dermot Horan, the executor of the above estate, and to give liberty to the applicant to apply to extract a grant of probate with will annexed. It is important to note that the application is made pursuant to s. 27 (4) of the Succession Act, 1965 ( “the 1965 Act”) in advance of the issue of any grant of probate to Mr. Dermot Horan as the executor appointed by the above-named deceased under her last will. In fact, one of the principal bases on which the present application is made is that Mr. Dermot Horan has failed to take out a grant of probate.

Relevant facts

2 The above-named deceased (who I shall refer to as Mrs. Horan) died, testate, on 19th April, 2018. At the time of her death, she was a ward of court having been admitted into wardship by order made by Kearns P. on 31st August, 2015. The order in question was made on foot of a petition brought by one of Mrs. Horan's four children namely Stephen Horan who is also the applicant in these proceedings. It is clear from the petition which led to the order admitting Mrs. Horan to wardship that she had been suffering from dementia since 2012. According to the affidavit of Mr. Stephen Horan (who I shall refer to as “the applicant”) the wardship application was opposed by his brother, Mr. Dermot Horan (who I shall refer to as “the executor”) who refused to accept that Mrs. Horan was incapable of managing her own affairs. Notwithstanding his opposition, the executor was unable to produce a report from any doctor indicating that his mother had capacity. In those circumstances, the order sought by the applicant was made by Kearns P.

3 In early 2016, Mrs. Horan commenced living in a nursing home. According to the affidavit of the applicant, there was ongoing difficulty between the nursing home and the executor which led to litigation. However, I do not have any direct evidence in relation to this issue and I therefore do not believe that it is a matter to which I should have regard for the purposes of this judgment.

4 As outlined above, Mrs. Horan died on 19th April, 2018. At the time of her death, she had four surviving children namely the applicant, the executor, and two daughters Ms. Josephine Horan and Ms. Yvonne Reynolds. One child, namely Ms. Delma Horan had died previously in 1999 without issue.

5 In her last will dated 16th June, 2006, the late Mrs. Horan appointed Mr. Dermot Horan as her executor and trustee of her will. She made a specific bequest of all of her interest in a transport company called Westwood International Transport Ltd ( “Westwood”) to the executor. She also left her dwelling house (together with its contents) in Blanchardstown to the executor.

6 One of Mrs. Horan's most significant assets is an industrial property known as 40 Fonthill Industrial Park. Under clause 3.1 of her will, Mrs. Horan left that property to her trustee to hold “in trust for sale” and she gave the executor as her trustee the following powers and directions:-

“3.2 To pay the net income arising from the property after deduction of all outgoings and taxes to the beneficiaries hereinafter specified and to postpone the sale for ten years from the date of my demise.

3.3 The Beneficiaries shall mean my sons Dermot Horan and Stephen Horan and my daughters Josephine Horan and Yvonne Reynolds.

3.4 Subject to the provision as to postponement at Clause 3.2 above I direct that the proceeds of sale will be divided among my beneficiaries in the following shares.

3.4.1 As to 1/4 … for my son Dermot for his own use and benefit absolutely… .

3.4.2 As to 1/4 for my son Stephen for his own use and benefit absolutely …

3.4.3 As to 1/4 … for my daughter Josephine Horan for her own use and benefit absolutely

3.4.4 As to 1/4 … for my daughter Yvonne Reynolds for her own use and benefit …”.

7 The late Mrs. Horan dealt with the residue of her estate in clause 4 of her will which provided that, subject to payment of debts and expenses, the residue should be paid to her trustee “upon trust to sell call in and convert the same into money and to distribute as hereinbefore provided for in relation to the trust for sale at Clause 3”.

8 Under Clause 5 of the will, Mrs. Horan made clear that the executor, in his capacity as trustee, for the purposes of dividing the estate between those entitled to it, might in his absolute discretion adopt such method of division or valuing of her estate or any part of it as he might think fit, his decision to be conclusive.

9 Under Clause 6, Mrs. Horan declared that her executor or trustee should not be personally liable for any breach of trust:

“… unless it shall be proved that at the time of his doing or suffering such breach … such act or default was done or suffered by him mala fide.

10 The estate of the late Mrs. Horan is substantial. In para. 8 of the grounding affidavit sworn by the applicant, he explains that, at the time of the wardship petition, the gross value of the estate was of the order of €5,105,942. This included the family home valued at €400,000; the Fonthill industrial unit valued at €1.85 million; a property in Mulhuddart owned by Westwood valued at €1 million; and money standing to the credit of various bank accounts amounting to over €1.8 million.

11 On 14th August, 2018, the solicitors acting for the applicant and his two sisters wrote to the executor calling upon him to lodge the necessary papers in the Probate Office to extract a grant of probate and administer Mrs. Horan's estate. The letter explained that a caveat had earlier been lodged in the Probate Office pending receipt of a copy of Mrs. Horan's will but that this had now been removed so that the executor would be free to take out a grant of probate.

12 On 11th September, 2018, the applicant's solicitor received a telephone call from the executor advising him that the executor could not take out a grant of probate until he first received a dismissal order from the Wards of Court Office discharging the late Mrs. Horan from wardship. Thereafter, the applicant's solicitor spoke with the General Solicitor for Minors and Wards of Court ( “the General Solicitor”) who made it clear that she had already advised the executor that a dismissal order was not required and that he could proceed to take out a grant. In those circumstances, the applicant's solicitor wrote again to the executor on 19th September, 2018 reiterating the request to extract a grant of probate and proceed with the administration of the estate of the late Mrs. Horan. Regrettably, there was no response to that letter. In those circumstances, the solicitors for the applicant wrote again to the executor on 4th January, 2019, 18th February, 2019 and 13th March, 2019. In the letter of 4th January, 2019, the solicitor for the applicant also raised a query in relation to the collection of rent from a tenant of the Fonthill Industrial Premises. This query was repeated in the letter of 18th February, 2019. That letter also sought confirmation that the executor had renewed the building insurance on the Fonthill premises. No substantive response was ever received to any of this correspondence (other than the very limited response that took place in the course of the...